Citation Nr: 0911087
Decision Date: 03/25/09 Archive Date: 04/01/09
DOCKET NO. 05-26 728 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an initial evaluation in excess of 30 percent
for a right knee condition.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1966 to June
1968.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
San Juan, the Commonwealth of Puerto Rico.
This case was previously before the Board in October 2007
when it was remanded for further development. The required
development having been completed, this case is appropriately
before the Board. See Stegall v. West, 11 Vet. App. 268
(1998).
FINDING OF FACT
The Veteran's right knee does not manifest extension limited
to 30 degrees or more, any nonunion of the tibia and fibula
with loss motion requiring a brace, or any recurrent
subluxation or lateral instability upon examination at any
time during the period on appeal.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 30 percent
disabling for a right knee disability have not been met. 38
U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.30, 4.71a, Diagnostic
Code 5003, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Higher Evaluation
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Disabilities must be reviewed in relation to their history.
38 C.F.R. § 4.1. Other applicable, general policy
considerations are: interpreting reports of examination in
light of the whole recorded history, reconciling the various
reports into a consistent picture so that the current rating
may accurately reflect the elements of disability, 38 C.F.R.
§ 4.2; resolving any reasonable doubt regarding the degree of
disability in favor of the claimant, 38 C.F.R. § 4.3; where
there is a question as to which of two evaluations apply,
assigning a higher of the two where the disability picture
more nearly approximates the criteria for the next higher
rating, 38 C.F.R. § 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1
Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However,
when an appeal arises from the initially assigned rating,
consideration must be given as to whether staged ratings
should be assigned to reflect entitlement to a higher rating
at any point during the pendency of the claim. Fenderson v.
West, 12 Vet. App. 119 (1999). Moreover, staged ratings are
appropriate in any increased-rating claim in which distinct
time periods with different ratable symptoms can be
identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).
In evaluating musculoskeletal disabilities, the Board must
also consider whether a higher disability evaluation is
warranted on the basis of functional loss due to weakness,
fatigability, incoordination, or pain on movement of a joint
under 38 C.F.R. §§ 4.40 and 4.45; see DeLuca v. Brown, 8 Vet.
App. 202 (1995). Functional loss contemplates the inability
of the body to perform the normal working movements of the
body with normal excursion, strength, speed, coordination and
endurance, and must be manifested by adequate evidence of
disabling pathology, especially when it is due to pain. 38
C.F.R. § 4.40. A part that becomes painful on use must be
regarded as seriously disabled. Id.; see also DeLuca. As
regards the joints, factors to be evaluated include more
movement than normal, weakened movement, excess fatigability,
incoordination, and pain on movement. 38 C.F.R. § 4.45(f).
The evaluation of the same disability under various
diagnoses, known as pyramiding, is to be avoided. 38 C.F.R.
§ 4.14. Even so, diagnostic codes predicated on limitation
of motion do not prohibit consideration of a higher rating
based on functional loss due to pain on use or due to flare-
ups under 38 C.F.R. §§ 4.40, 4.45, 4.59. Johnson v. Brown, 9
Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206
(1995).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the Secretary shall give the benefit of the doubt
to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102;
see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In July 2004 the Veteran filed a claim of entitlement to
service connection for a right knee condition. In a January
2005 rating decision the Veteran was granted entitlement to
service connection for osteoarthritis and chondromalacia of
the right knee and assigned an evaluation of 30 percent
disabling, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code
5003-5261, effective July 16, 2004, the date of the Veteran's
initial claim of entitlement to service connection. The
Veteran appealed this initial evaluation of his right knee
condition claiming that it is more severe than contemplated
by a 30 percent disabling evaluation.
Diagnostic Code 5261 provides ratings based on limitation of
extension of the leg. Extension of the leg limited to 20
degrees is rated 30 percent disabling; extension of the leg
limited to 30 degrees is rated 40 percent disabling; and
extension of the leg limited to 45 degrees is rated 50
percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04
(separate ratings may be granted based on limitation of
flexion (Diagnostic Code 5260) and limitation of extension
(Diagnostic Code 5261) of the same knee joint).
Diagnostic Code 5256 provides ratings for ankylosis of the
knee. Favorable ankylosis of the knee, with angle in full
extension, or in slight flexion between zero degrees and 10
degrees, is rated 30 percent disabling. Unfavorable
ankylosis of the knee, in flexion between 10 degrees and 20
degrees, is to be rated 40 percent disabling; unfavorable
ankylosis of the knee, in flexion between 20 degrees and 45
degrees, is rated 50 percent disabling; extremely be rated 60
percent disabling. 38 C.F.R. § 4.71a.
Diagnostic Code 5257 provides ratings for other impairment of
the knee that includes recurrent subluxation or lateral
instability. Slight recurrent subluxation or lateral
instability of the knee is rated 10 percent disabling;
moderate recurrent subluxation or lateral instability of the
knee is rated 20 percent disabling; and severe recurrent
subluxation or lateral instability of the knee is rated 30
percent disabling. 38 C.F.R. § 4.71a. Separate disability
ratings are possible for arthritis with limitation of motion
under Diagnostic Codes 5003 and instability of a knee under
Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray
findings of arthritis are present and a Veteran's knee
disability is rated under Diagnostic Code 5257, the Veteran
would be entitled to a separate compensable rating under
Diagnostic Code 5003 if the arthritis results in
noncompensable limitation of motion and/or objective findings
or indicators of pain. See VAOPGCPREC 9-98.
Under Diagnostic Code 5260, flexion of the leg limited to 60
degrees warrants a noncompensable evaluation; flexion limited
to 45 degrees warrants a 10 percent evaluation; flexion
limited to 30 degrees warrants a 20 percent rating; and
flexion limited to 15 degrees warrants a 30 percent
evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260.
Diagnostic Code 5258 provides a 20 percent rating for
dislocated semilunar cartilage with frequent episodes of
"locking," pain, and effusion into the joint.
38 C.F.R. § 4.71a.
Diagnostic Code 5259 provides a 10 percent rating for removal
of semilunar cartilage that is symptomatic. 38 C.F.R. §
4.71a.
Diagnostic Code 5262 provides ratings based on impairment of
the tibia and fibula. Malunion of the tibia and fibula with
slight knee or ankle disability is rated 10 percent
disabling; malunion of the tibia and fibula with moderate
knee or ankle disability is rated 20 percent disabling; and
malunion of the tibia and fibula with marked knee or ankle
disability is rated 30 percent disabling. Nonunion of the
tibia and fibula with loose motion, requiring a brace, is
rated 40 percent disabling. 38 C.F.R. § 4.71a.
Normal ranges of motion of the knee are to 0 degrees in
extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71,
Plate II.
Diagnostic Code 5003 provides that degenerative arthritis
that is established by X-ray findings will be rated on the
basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When there is no limitation of motion of the specific joint
or joints that involve degenerative arthritis, Diagnostic
Code 5003 provides a 20 percent rating for degenerative
arthritis with X-ray evidence of involvement of 2 or more
major joints or 2 or more minor joint groups, with occasional
incapacitating exacerbations, and a 10 percent rating for
degenerative arthritis with X-ray evidence of involvement of
2 or more major joints or 2 or more minor joint groups. Note
(1) provides that the 20 pct and 10 pct ratings based on X-
ray findings will not be combined with ratings based on
limitation of motion. Note (2) provides that the 20 percent
and 10 percent ratings based on X-ray findings, above, will
not be utilized in rating conditions listed under Diagnostic
Codes 5013 to 5024, inclusive.
When there is some limitation of motion of the specific joint
or joints involved that is noncompensable (0 percent) under
the appropriate diagnostic codes, Diagnostic Code 5003
provides a rating of 10 percent for each such major joint or
group of minor joints affected by limitation of motion, to be
combined, not added under Diagnostic Code 5003. Limitation
of motion must be objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of painful
motion.
When there is limitation of motion of the specific joint or
joints that is compensable (10 percent or higher) under the
appropriate diagnostic codes, the compensable limitation of
motion should be rated under the appropriate diagnostic codes
for the specific joint or joints involved. 38 C.F.R. §
4.71a.
In November 2004 the Veteran underwent a private x-ray
examination. The examination revealed hypertrophic changes
of the periarticular area, narrowing of the joint spaces, and
patellar chondromalacia of the right knee. The physician who
interpreted the x-ray diagnosed the Veteran with
chondromalacia of patella and osteoarthritis of the knee.
In December 2004 the Veteran was afforded a VA Compensation
and Pension (C&P) examination. The veteran reported that he
had residual pain since the in-service accident that was
moderate in nature that day. He stated the pain increased at
least one time per week for about three hours. He states the
pain is worse with walking and standing. He could reduce his
pain to mild by taking Naproxen. He also reported that he
could move the knee but it fatigued within five minutes of
walking. He also had difficulty climbing stairs and used a
cane and knee brace. The examiner indicated that the Veteran
had osteoarthritis and chondromalacia of patella of the right
knee. Upon examination, the Veteran's right knee had a range
of motion of 95 degrees of flexion and 15 degrees of
extension. It was noted that the range of motion and/or
function of the right knee was additionally limited by
fatigue and lack of endurance with repetitive use.
Upon VA examination in April 2005, the Veteran reported that
he was receiving physical therapy in both his knees for
alleviation of residual pain. He had recently been told that
he may need another surgery due to severe degenerative joint
disease. The Veteran reported pain that affected him almost
daily and that was 7/10 in intensity. He also stated that
his pain was accompanied by weakness, stiffness, swelling,
locking, instability, fatigability and lack of endurance for
ambulation. The Veteran was taking tramadol 50 mg. p.o. as
well as naproxen 550 mg. p.o. b.i.d., with mild relief. He
indicated that periods of flare-ups occurred weekly with a
duration of three to four hours and pain of 9/10. Prolonged
standing and ambulation exacerbated the pain. Pain was
alleviated by taking medications and elevating his legs.
Additional functional limitation during flare-ups consisted
of limitation in the ability to ambulate. The Veteran walked
with a one-point cane. Recurrent subluxation and dislocation
were denied. The Veteran was noted to be retired and
independent in self-care and activities of daily living.
Physical examination revealed the ability to flex from 0 to
120 degrees with pain during the last 30 degrees. There was
extension of 0 degrees with pain during the last 10 degrees.
Instability test for varus-valgus and anterior-posterior
stress test was negative. McMurray's test was negative but
there was tenderness upon palpation at the peripatellar area.
Crepitance was also noted upon repetitive flexion and
extension. There was a positive grinding test. Repetitive
squatting elicited pain and grimacing as well as evidence of
weakness. Weakness was the major factor observed since he
was unable to rise from the squatting position due to
weakness. There was no evidence of edema, effusion or
redness. It was noted that X-ray result in 2003 showed
chondromalacia patella and that an April 2005 X-ray result
indicated chondrocalcinosis, severe. The diagnoses were
patellofemoral dysfunction, status-post right quadriceps
muscle rupture (as seen in the medical record), meniscal
injury, and degenerative joint disease.
An August 2006 private radiologist's report indicated that
the Veteran had a Baker's cyst measuring 1.66 cm. on the
right.
In December 2007 the Veteran was afforded a VA C&P
examination. The Veteran reported that he always used a
cane, that he was unable to stand for more than a few
minutes, unable to walk more than a few yards and that he had
locking episodes daily or more often, constant effusion,
swelling, tenderness, limitation of motion. pain, weakness
and stiffness. He reported that there was no instability,
giving way, dislocation, or subluxation. He indicated that
he had severe weekly flare-ups which lasted for hours and
rendered him unable to ambulate long distances. During the
examination, pain intensity was noted to be 2-3/10.
Upon physical examination, there was no instability or
subluxation of the right knee. The examiner noted that the
Veteran reported an occasional locking sensation. There was
no ankylosis of the joint. The range of motion of the right
knee was 110 degrees of active flexion with pain beginning at
100 degrees and passive flexion to 125 degrees with pain
beginning at 100 degrees. The Veteran was only able to flex
to 105 degrees after repetitive use due to pain and weakness.
Active extension was to -5 degrees of extension with pain
beginning at -6 degrees. Passive extension was to 0 degrees
with pain beginning at -6 degrees. Range of motion on
repetitive use was from -5 to -7 degrees due to pain and
weakness. The examiner indicated the condition manifested as
bony joint enlargement with crepitus, effusion, tenderness,
painful movement and weakness. There was grinding and
abnormal patellar tracking. X-ray examination of the right
knee revealed degenerative joint disease. It was noted that
the Veteran was retired as of December 2000 due to his knee
conditions and major depression. The right knee disability
was assessed as having a moderate effect on chores,
recreation, travel, bathing, and dressing and a severe effect
on shopping. It prevented exercise and sports. The
examiner also stated that although the Veteran reported
occasional locking, none was found on examination. In the
examiner's opinion, a light duty administrative job would be
appropriate with no standing for more than two hours without
taking a 15 minute break and no jumping, excessive walking or
prolonged sitting.
In light of the evidence, the Board finds that entitlement to
an initial evaluation in excess of 30 percent disabling is
not warranted. An evaluation in excess of 30 percent is
available under Diagnostic Code 5256; however, as the
Veteran's right knee did not manifest ankylosis at any time
during the period on appeal, evaluation under this diagnostic
code is not warranted. An evaluation in excess of 30 percent
disabling is available under Diagnostic Code 5261 based on
limitation of extension of the leg. However, the Veteran's
right knee did not manifest extension limited to 30 degrees
or more at any time during the period on appeal, even taking
into account additional range of motion lost due to pain and
weakness, therefore, a higher initial evaluation under this
diagnostic code is not warranted. An evaluation in excess of
30 percent disabling is available under Diagnostic Code 5262
based on impairment of the tibia and fibula. However, the
Veteran's right knee did not manifest any nonunion of the
tibia and fibula with loss of motion requiring a brace at any
time during the period on appeal, therefore, a higher initial
evaluation under this diagnostic code is not warranted. As
noted above, a separate evaluation under Diagnostic Code 5257
based upon recurrent subluxation or lateral instability is
available. However, the Veteran's right knee did not
manifest any recurrent subluxation or lateral instability
upon examination at any time during the period on appeal,
therefore, a separate evaluation under this diagnostic code
is not warranted. The Board has considered Diagnostic Codes
5258, 5259, 5260, and 5263; however, as noted above,
evaluations in excess of 30 percent disabling are not
available under these diagnostic codes. Separate evaluations
are also not warranted pursuant to those Codes as his
cartilage has not been dislocated or removed and he does not
have genu recurvatum. The Board has also considered the
propriety of a separation rating pursuant to Code 5260,
however, at no point during the duration of the claim period
has the Veteran's flexion been limited to 45 degrees (or 60
degrees) even taking into account the additional range of
motion lost on repetitive use due to pain and weakness. The
Veteran's complaints of pain, flare-ups of pain once a week
for three to four hours which further limit his ability to
ambulate, fatigue and pain upon walking or standing,
stiffness, swelling, tenderness, and sensations of locking
and instability have been considered in assigning the 30
percent evaluation. However, the evidence as a whole as
discussed above shows that the criteria for a higher
evaluation and separation evaluations are not met, therefore,
entitlement to an initial evaluation in excess of 30 percent
disabling is denied.
The Board finds that this matter need not be remanded to have
the RO refer the Veteran's claim to the Under Secretary for
Benefits or to the Director of the Compensation and Pension
Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of
an extraschedular rating. The Board notes the above
determination is based on application of pertinent provisions
of the VA's Schedule for Rating Disabilities, and there is no
showing that the Veteran's right knee disability reflects so
exceptional or so unusual a disability picture as to warrant
the assignment of a rating on an extraschedular basis, and
indeed, neither the Veteran nor his representative have
identified any exceptional or unusual disability factors.
See 38 C.F.R. § 3.321. In fact, his signs and symptoms and
the level of severity, as discussed above, are contemplated
by the schedular criteria. Accordingly the criteria for
submission for assignment of an extraschedular rating are not
met. Thus, a remand this claim to the RO for the procedural
actions outlined in 38 C.F.R. § 3.321(b)(1) is not necessary.
See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v.
Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
II. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), the VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide in
accordance with 38 C.F.R. § 3.159(b)(1). This notice must be
provided prior to an initial unfavorable decision on a claim
by the agency of original jurisdiction (AOJ). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
Here, the Veteran is challenging the initial evaluation
assigned following the grant of service connection. In
Dingess, the U.S. Court of Appeals for Veterans Claims
(Court) held that in cases where service connection has been
granted and an initial disability rating and effective date
have been assigned, the typical service-connection claim has
been more than substantiated, it has been proven, thereby
rendering section 5103(a) notice no longer required because
the purpose that the notice is intended to serve has been
fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 490-91
(2006). Thus, VA's duty to notify in this case has been
satisfied.
VA has a duty to assist the Veteran in the development of the
claim. This duty includes assisting the Veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained or the Veteran has
provided VA treatment records and private treatment records.
The appellant was afforded three VA medical examinations.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. In
that regard, the Board notes that the Veteran referenced "S
Social" not having told him anything in a statement of
December 2006. It is not clear if he is referring to Social
Security Administration benefits and if so what type of
benefit. It is noted that he was approaching retirement age
for Social Security purposes when that statement was written.
As it has not been reported to VA that he filed for Social
Security Administration disability benefits and that relevant
evidence concerning the right knee may be in their
possession, there is no duty to assist in that regard that is
unfulfilled. Hence, no further notice or assistance to the
appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Entitlement to an initial evaluation in excess of 30 percent
for a right knee condition is denied.
____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs